Montalvo v. Borkavec

647 N.W.2d 413 (2002)

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Nature of the Case

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Facts

P entered the hospital with pre-term labor symptoms. An ultrasound revealed that the baby was 23 and 3/7 weeks old, and weighed 679 grams. Attempts to interrupt her labor and delay the birth were unsuccessful. Ps executed an informed consent agreement for a cesarean procedure. D performed the cesarean section. Emanuel was 'handed off' to Dr. Arnold, a neonatologist, who successfully performed life-saving resuscitation measures. P then filed a complaint against Ds alleging that both physicians violated the informed consent statute in performing the cesarean section because the physicians failed to advise the parents of 'the risks or potential consequences of a child born at 23 or 24 weeks gestation and/or with a birth weight of less than 750 grams,' consent was not informed, and a variety of damages resulted. Ds moved to dismiss the claims contending that the complaint failed to state a claim upon which relief could be granted. Ps were not alleging harm to Emanuel as the result of 'extraordinary care measures' but were claiming that the decision to use 'extraordinary care measures' should have been relegated to them as parents rather than left to the physicians. Ps were not alleging that Emanuel was disabled by any actions taken by the physicians or St. Mary's Hospital. The trial court dismissed the complaint in that Wisconsin law does not leave the resuscitation decision upon the birth of a child solely to the parents because of the community's interest in protecting children, and the physicians' commitment to preserving life. Ps appealed.